ATTENTION: The 9th Circuit amends the 2nd Amendment…

The last time I checked, neither state government nor the Courts had any power, real or imagined, to amend the U.S. Constitution.  A recent ruling from the 9th Circuit, however, suggests maybe I need to check again.  In a decision that confounds common sense, plain reading of the Constitutional text as much as it creates a legal non-sense, a divided 9th Circuit upheld Cal. Penal Law §25400 and §25655, which generally makes it unlawful to conceal carry firearms in public AND limits a license to conceal-carry to a finding of “good cause” by the issuing sheriff.  Peruta v. San Diego, 2016 WL 3194315 (9th Cir. June 9, 2016).

The procedural history of this case is itself dubious.  First, it should be noted that Peruta technically consisted of consolidated cases wherein plaintiffs challenged essentially the same local (county-level) iteration of §25400 and §25655.  The named plaintiff, Peruta, brought a Second Amendment suit against the County of San Diego.  Interestingly also, this case was the 9th Circuit’s rehearing and reversal of its own decision in Peruta I (742 F.3d 1144 (9th Cir. 2014)) wherein an en banc panel of the 9th had previously found good cause requirements unconstitutional.  The Sheriff of the San Diego, after Peruta I, declined to appeal for a rehearing, but that’s where the state of California intervened – prompting a hearing before the full Court – Peruta II.  San Diego county’s iteration of the good cause requirement defines such as…

…a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm’s way.  Simply fearing for one’s personal safety alone is not considered good cause.

The other case – Richards v. Prieto, Cnty. of Yolo, involved the named Plaintiff, Richards, bringing suit on the same grounds as plaintiff Peruta, but against Yolo County’s own version of the good cause requirement.  Amazingly, the County of Yolo does not bother to even define good cause (as if the concept wasn’t vague and arbitrary enough under California state law), rather the County instructs its residents that there are certain circumstances which, definitively, do or do not give rise to good cause.  Among those circumstances:

Victims of violent crime and/or documented threats of violence [yep]

Self protection and protection of family [nope]

Business owners who work all hours in remote areas and are likely to encounter dangerous people and situations [yep]

Personal safety due to job conditions or duties placed on the applicant by their employer [nope]

In a written opinion of truly amazing acrobatics – The 9th Circuit somehow sidestepped the very plain language of the Second Amendment, and also putatively avoided going as far as (explicitly) finding that the Second Amendment ensures no right, whatsoever, to publicly possessing a firearm for self-protection(“That question was left open by the Supreme Court in Heller, and we have no need to answer it here.”)  The problem is, California law also forbids open-carry, pursuant to Cal. Penal Law §26350.  Therefore, as a practical matter now, a private citizen cannot legally possess firearms in public for the purpose of self-protection.  Oh well, the catch-22 there was clearly not a concern for the Court.  Isn’t the narrow grounds approach to jurisprudence refreshing?

Irrespective of whether the reader belongs to the so-called textualist school of judicial philosophy, or that of the living Constitution, the ruling has to be seen as a baffling one.  I could have sworn that the Second Amendment states, in relevant part, “…the right to keep and bear arms shall not be infringed.”  Webster’s Dictionary includes the following definition of the word “bear” as including “to produce” and/or “to bring forth”.  Further, the Constitutional Convention’s inclusion of “bear” after stating “keep” rationally indicates that keeping and bearing are not one in the same thing – that the latter is an additional right, not to be confused with the former.  Sure, the Court engaged in an expansive quest for historical precedent to state’s prohibiting public carrying of weapons, but precedents can be found from the reverse side as well.  The writer finds it indicative of the weakness of the Court’s opinion that a majority of the 9th Circuit’s historical assessment looked to monarchical English history, first and foremost.

Well there you have it, the 9th has effectively taken the “bear” out of “…keep and bear arms…” – an amendment, as I see it.  Who needs Congress or a Constitutional Convention when you have overreaching judges.

7 thoughts on “ATTENTION: The 9th Circuit amends the 2nd Amendment…

  1. SO, is THIS what we can expect from the REST of the country if a hostile state(s) elects judges of similar mind ? Is there NO recourse for the citizens of THE PEOPLES REPUBLIC OF CALI.?


  2. Peruta wanted a permit to carry a concealed weapon in public. There is no right to carry a weapon concealed in public. That is why Peruta lost. Everything else is snakeoil.

    “[A] right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

    “In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right…Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2809

    “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152-153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489-490; Nunn v. State, 1 Ga., at 251…” District of Columbia v. Heller, 128 S. Ct. 2783 (2008) at 2816

    “But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons…” Heller dissent at 2851

    “I am similarly puzzled by the majority’s list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny. These consist of (1) “prohibitions on carrying concealed weapons”…” Heller dissent at 2869

    “[T]he right of the people to keep and bear arms (art. 2) is not infringed by laws prohibiting the carrying of concealed weapons…” Robertson v. Baldwin, 165 US 275 – Supreme Court (1897) at 282.


  3. Charles Nichols, thanks for responding. I’m afraid your very first statement is conclusory – If there is no “[Constitutional] “right” to concealed carry as you so easily conclude, then we can all pack up and go home then, I suppose. Why did the 9th Circuit even entertain Peruta? Of course, the matter is not nearly as clear-cut as all that; I believe this was a matter of first impression before that court after all.

    I’m not sure your citations of case law, learned as they are, make things any clearer for us either. First, with regards to Heller, I think we can agree that SCOTUS did not therein expressly reach the question of concealed carry. Further, your first quotation from the Heller decision is curious; that excerpt from the opinion (which was Scalia quoting the Louisiana Supreme Court’s 1850 decision, State v. Chandler) would logically tend to support concealed or open carry. Defending oneself or the country from “secret advantage” and/or “unmanly assassinations” suggests to me a protected sphere for keeping and bearing arms outside the home.

    The Heller decision’s citation to the Georgia Supreme Court’s Nunn v. State damages your conclusory statement. As Scalia explained, the Georgia Supreme Court there decided that the Second Amendment inures a natural right of self-defense, and “therefore struck down a ban on carrying pistols openly.” In other words, Charles Nichols,the Nunn Court expressly held that Second Amendment protections extend to open carry, and tacitly held that the Second Amendment is not limited to defense in the home.

    Your citation of Heller, at p. 2816 is a strong point. I must acknowledge that there the opinion comes rather close to deciding that prohibitions on concealed carry generally pass constitutional muster. However, I don’t think the decision goes quite that far. Yes, Scalia acknowledges that there is a body of case law, particularly from the “19th century” that upheld bans on concealed carry; Nevertheless, I believe that this comment has more to do with Scalia’s underlining that U.S. Courts have never, historically, interpreted the Second Amendment as granting absolute rights. Such is not to say that the decision actually endorses such concealed carry bans as fundamentally sound law in a contemporary setting.

    I think this is a good debate. I do not think that Heller answers the question of concealed carry. I wonder what your thoughts are, Charles Nichols, about California’s de facto criminalization of ALL firearms possession outside the home – which is the outcome of Peruta, lest we forget (open carry also illegal there).


    1. To answer your last question first, in November of 2011 I filed a Federal lawsuit to overturn California’s 1967 ban on openly carrying loaded firearms – The Black Panther Gun Ban. I subsequently amended my Complaint to challenge the Unloaded Open Carry bans as well as two California CCW laws which provide for the issuance of handgun Open Carry licenses but only in counties with a population of fewer than 200,000 people.

      I sometimes wondered if it were a generational problem with younger lawyers reading the Heller decision until 9th Circuit Judge O’Scannlain wrote the majority opinion in the infamous, and now vacated, sharply divided three judge panel decision in Peruta v. San Diego.

      Of course his conclusion that Open Carry can be banned in favor of concealed carry could be a result of his advanced age. It certainly wasn’t supported by any US Supreme Court decision (or any decision or other historical authority).

      Indeed, the four justices in the Heller dissent read the majority to say that concealed carry can be banned: “But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws — prohibitions on concealed weapons…” Heller dissent at 2851

      Professor Shaun P. Martin of the University of Southern California School of Law had this to say about the en banc Peruta decision ->

      Which goes to show that the problem isn’t with the Heller decision. The problem is with those who don’t know how to read the decision.

      Ironically, Justice Scalia (who wrote the Heller decision) wrote a book on how to read decisions. A book that the so called gun-rights lawyers either did not read or do not understand.


  4. Today, August 15, 2016, the Full Court petitions in Peruta v. San Diego and Richards v. Prieto were denied without a single judge filing a dissent.

    You can file the plaintiffs legal theory under “Play stupid games, win stupid prizes.”


  5. they need to get rid of every judge that is in the 9th circuit…they always get overturned cause they are overreaching


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